Get Ready To Rumble

After months of assault, defenders of the First Amendment go on the offensive
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Freedom Under Fire

From his WXRK(FM) studio in midtown Manhattan, Howard Stern, the self-described "King of All Media," claimed another title: Defender of Free Speech.

Before a crowd of reporters invited to hear news that nine more stations would carry his radio show, Stern declared war on the government's indecency crackdown. "This will teach the FCC a lesson, that we don't give up," he said. "We are going to fight back."

Stern, also known for spanking strippers on-air, has attracted a variety of respectable media allies ready to join him in battle.

"I have not seen a period where the free-speech rights take a back seat to so many different interests since I began practicing First Amendment law 15 years ago—be it protecting kids, fighting terrorism or safeguarding personal privacy," says Kathleen Kirby, counsel for the Radio-Television News Directors Association.

The current firestorm over media indecency has been building for years. Sen. Ernest Hollings (D-S.C.) has been calling for curbs on TV violence for a decade. Big-media foes—even some defenders—say moral standards are slipping faster now, evidenced by the nightly stream of profanity from the lips of stars on sitcoms and dramas.

Moreover, the incendiary nature of Janet Jackson's Super Bowl nipple flash and rock star Bono's "fucking brilliant!" blurt at the Golden Globes show, combined with politicians' election-year, pro-family posturing, has generated the perfect conditions for a cultural tempest.

The passion over images has so polarized the debate that it's virtually impossible to draw a line where everyone is satisfied. A decision earlier this year by ERproducers to blur the breast of an elderly woman being treated in the hospital demonstrates the delicate balance faced by TV producers and the chill of self-censorship.

At the heart of the argument are two competing American values, crystallized in a single question: Do the rights of a parent concerned about sexual and violent images on TV trump the constitutionally protected artistic freedom of a producer or actor?

The fireworks are just getting started. After taking a pounding from policymakers and the public for most of 2004, media companies are launching defensive strikes on three key battlegrounds: the FCC, Congress and the courts.

The industry's first big protective maneuver may come as early as next week at the FCC, which is expected to hit Viacom's Infinity with a $1.5 million fine for a Howard Stern program that aired on 18 company stations. On the show, then-Stern sidekick "Stuttering John" Melendez, now a Tonight Show regular, joined the Stern gang in raunchy sex talk.

Infinity parent Viacom is expected to wage an appeal once the FCC proposes the fine. A decade ago, Infinity paid more than $1 million to settle fines for Stern broadcasts, but, with the FCC threatening license revocations for egregious offenders, the company has decided now's the time to fight.

Indeed, reflecting a tougher stance, Infinity said it will launch Stern's show in nine markets, including four of the six markets where Clear Channel dropped the shock jock. At the press conference last week, Stern charged that the FCC was using his show's racy humor as a smokescreen. The shock jock said the real reason he had been targeted was his noisy opposition to the Bush administration. FCC Chairman Michael Powell, he added, is "a crackpot."

The FCC also becomes center stage for the fight over Janet Jackson's "wardrobe malfunction." FCC commissioners are now reviewing a $550,000 total fine proposed by staff against the 20 CBS stations Viacom owns. Infinity will likely appeal that sanction, too, so a final FCC decision probably won't come until late in the year. No matter who is elected president, the ruling is expected to stand.

Perhaps the most famous indecency appeal at the FCC now is for the ruling on Bono's remark. NBC, which aired the Golden Globes show, has joined Fox, Viacom and other TV-station groups in demanding the FCC overturn the decision on the grounds that the rules do not consider the context of the word and because they do not spell out, beyond the single word fuck, which words are off-limits.

The stakes are much higher in Congress, which is drafting even tougher legislation to clamp down on TV indecency. Just two weeks ago, the Senate voted to jack up the maximum fine for a single violation of broadcast indecency tenfold, to $275,000; a tougher House version hikes the fines to $1 million. A vote is expected by September.

Indecency and violence will still rank high among priorities when Congress reconvenes next year. Congressional leaders are debating whether to increase the liability of individual performers, such as Jackson, and, more troubling for cable programmers, whether cable TV should face broadcast-style indecency restrictions.

Supporters of tougher rules say cutting a few scenes is a small price for shielding kids from vulgar content. Many programs today are "clearly intended to ignore regulations designed to protect families," says Sen. Sam Brownback (R-Kan.), the primary sponsor of fine increases approved by the Senate.

Already, the largest media companies are launching an offensive, joining forces to challenge higher fines in court as soon as they are enacted. Their aim isn't just to prevent higher fines but to convince federal judges that the FCC's anti-indecency regulations should be struck down in their entirety.

In effect, the media firms are teeing up the biggest battle of all: a First Amendment showdown at the Supreme Court. All the rules are vulnerable, many First Amendment lawyers say, because their constitutionality has never been thoroughly challenged. Furthermore, they say, the FCC's 2001 guidelines for broadcast stations are confusing and ambiguous, which the courts typically condemn.

First Amendment defenders are optimistic that they'll get a favorable hearing at the Supreme Court. Just last week, the high court blocked enforcement of Internet-porn restrictions, ruling that the government must use "the least restrictive means" to protect children.

Even as the debate rages in Washington, media executives are rushing to assure Wall Street the indecency crackdown won't affect the bottom line. Maybe, but Clear Channel may lose revenue when Howard Stern's show becomes a competitor in key markets.

Defenders of the First Amendment say neither the FCC's penalties nor the financial performance of shock jocks fully reflects the threat to core freedoms guaranteed in the Constitution. Says free-speech lawyer John Crigler, "I won't be lighting fireworks over the First Amendment any time soon."

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